Ontario court to rule on constitutionality of minimum sentences for gun crimes after man faced three years in jail for posing with firearm

The case of a robber who ambushed employees of an Ottawa grocery store with a pellet gun is among six cases that will be decided Tuesday by Ontario’s Court of Appeal in what could be a landmark decision on the constitutionality of mandatory minimum sentences for gun crimes.

The stakes are high for the Conservative government’s justice agenda, since a decision finding the sentences unconstitutional would effectively strike down the sentences in Ontario.

But no matter what the Ontario appellate court decides, all roads lead to the Supreme Court of Canada, said Kent Roach, a University of Toronto professor.

“If the government loses tomorrow, I expect that they will appeal very quickly to the Supreme Court,” said Prof. Roach, since the federal government is “obviously committed to mandatory sentences” and the Supreme Court has sent strong signals mandatory minimum sentences are a matter for Parliament to decide.

If the government loses tomorrow, I expect that they will appeal very quickly

However, a decision upholding the constitutionality of the mandatory minimums for gun crime is equally likely to end up in the country’s highest court, given the mounting criticism by judges and other legal experts to their validity.

The panel of five Ontario appeal court judges is considering six cases, including that of Ottawa grocery store robber Matthew Rocheleau.

Rocheleau was 24 years old when he pleaded guilty to two dozen charges after a series of daring robberies between October 2008 and March 2009. Five of the charges carried mandatory minimum sentences.

The man mostly acted as the lookout and getaway car driver during the spree, in which Rocheleau and two accomplices targeted grocery stores. But in December 2008, a masked Rocheleau, who was carrying a revolver-style pellet gun, and an accomplice armed with a rifle dropped through a roof hatch and confronted four employees.

They secured three of the victims with duct tape, then made the fourth disarm the security system. They fled empty handed after thinking they had spotted an unmarked police car.

Rocheleau pointed the gun at no one, but the Ottawa judge hearing the case found the eight-year mandatory minimum prison sentence prescribed by law did not amount to cruel and unusual punishment. His lawyer argued it was “ridiculous” and grossly disproportionate to what the first-time offender would otherwise receive.

Ontario Court Justice Jack Nadelle said a five- or six-year prison term would have been appropriate, but concluded most Canadians would not find the eight-year term abhorrent and upheld the mandatory minimums.

The court of appeal is also ruling on the case of Leroy Smickle, a Toronto man who faced a mandatory minimum three-year sentence for what a judge found was “adolescent preening” with a loaded firearm for a Facebook photo.

There is a difference between a gang member who possesses a gun in order to further criminal enterprise and somebody who is simply technically in illegal possession of the firearm

Justice Anne Molloy said the mandatory sentence amounted to cruel and unusual punishment given the circumstances. The minimum sentence was “fundamentally unfair, outrageous, abhorrent and intolerable, she concluded.

Solomon Friedman, an Ottawa lawyer who specializes in firearms law, said he sees two critical problems with the law.

“It fails to distinguish between people who possess firearms for a criminal purpose and people who have not complied with the licensing or registration scheme,” he said.

“There is a difference between a gang member who possesses a gun in order to further criminal enterprise and somebody who is simply technically in illegal possession of the firearm.”

The second problem is the gap between sentences for those charged summarily and those charged by indictment.

Someone who is charged summarily for an offence, such as possessing a firearm with readily accessible ammunition, faces a one-year maximum sentence and no minimum; someone charged by indictment for the exact same offence faces a three-year mandatory sentence.